EMAIL TO A FRIEND COMMENT

 

Borrowed Employee Doctrine and State Physician’s Immunity


In the middle of the night, a boy was brought to the emergency room by his parents. The boy was suffering from a cough and congestion. The ER doctor ordered a radiological study of the boy’s chest. The resident radiologist on duty reviewed the radiological study and found an old, healed rib fracture consistent with child abuse on the radiographic film.

 

The resident sought the parents’ consent for a full skeletal radiological exam to observe any indications of trauma or abuse. The parents reluctantly gave their consent with the understanding that if the full skeletal exam did not indicate trauma or abuse then no report would be made to child protective services. The additional exam did not indicate trauma or abuse. The parents left with their son. Notwithstanding the test results, a social worker at the hospital reported an allegation of potential abuse of the boy to child protective services.

 

A few days later, a different doctor called the parents and informed them that the resident had misread radiological study of the boy’s chest. It indicated a congenital variant or defect not a rib fracture. The doctor who called stated that the hospital’s medical records for the boy would be corrected regarding the reading of the film.

 

When the parents obtained the boy’s medical records from the hospital, the interpretation of the radiological film did not appear to be clarified. The radiologist who supervised the resident who misread the chest film had signed the unclarified radiology report.

 

The supervising radiologist was employed by a state medical center. The state medical center had a contract with the hospital where the boy was treated under which the supervising radiologist provided care to patients at the hospital. The contract between the state medical center and the hospital provided that the supervising radiologist was not employed by, paid by, or subject to the control of the hospital, but the radiologist’s health care services were provided to the hospital’s patients at the hospital’s facilities.

 

The parents sued the hospital, the ER doctor, the radiology resident, and the supervising radiologist. The complaint claimed that the hospital and doctors were professionally negligent, which proximately caused them injuries and damages. In addition to unspecified damages, the parents pleaded for a determination of their legal rights.

 

The supervising radiologist filed a motion to dismiss relative to the parent’s claim for negligence. The supervising radiologist argued that because he was an employee of the state medical center he could not be sued individually. The motion asserted that, pursuant to section 101.106(f) of the Texas Tort Claims Act (TCA), the parents had 30 days to add the state medical center as a defendant and must dismiss the supervising radiologist from the lawsuit. The parents did not add the state medical center as a defendant and did not dismiss the supervising radiologist from the lawsuit. The County Court at Law No. 5, Dallas County, did not rule on the doctor’s motion to dismiss.

 

Three months later, the supervising radiologist filed a motion for summary judgment on the same basis as his motion to dismiss. Attached to the motion were the supervising radiologist’s affidavit in which he stated the facts about his employment with the state medical center and lack of employment with the hospital, his IRS form W–2 for the relevant time period showing he received salary and retirement plan contributions from the state medical center, his Memorandum of Appointment with the state medical center showing he was an assistant professor in radiology for “100%” of his time for the relevant time period, a page from a contractual document he signed providing that all professional income he earned from a source other than the state medical center was assigned to the “Institutional Trust Fund,” and an affidavit from a state medical center human resources supervisor testifying that the supervising radiologist was a full-time employee of the state medical center during the relevant time period.

 

The parents argued that the supervising radiologist was a borrowed employee of, and under the control of, the hospital. As such, the supervising radiologist was not a governmental employee within the meaning of the TCA’s definition of employee.

 

The trial court denied the supervising radiologist’s motion for summary judgment.

 

The Court of Appeals of Texas, Dallas, reversed and entered judgment in favor of the supervising radiologist on the negligence claim. The court held that the summary judgment evidence conclusively established the supervising radiologist’s right to dismissal under the TCA, and the borrowed employee doctrine did not preclude summary judgment.

 

The summary judgment evidence conclusively established the supervising radiologist’s right to dismissal under the TCA. In order to obtain summary judgment pursuant to section 101.106(f) of the TCA, governmental employees must conclusively prove: (1) they are employees of a governmental unit, (2) the claims, if brought against their governmental employer, would fall within the ambit of the Act, (3) the claims against them are based on conduct generally in the scope of their governmental employment, and (4) the employees moved to substitute their governmental employer and to be dismissed. The court found that the supervising radiologist’s evidence was uncontroverted that he was in the paid service of the state medical center and that all of his professional work, including his provision of health care to the boy, was within the scope of his contractual agreement with the state medical center.

 

The borrowed employee doctrine did not preclude summary judgment. The court explained that a regular employee of an employer becomes a borrowed employee of another employer as to a task or activity for purposes of vicarious liability if the other employer has the right to direct and control the employee with respect to the details of the particular work at issue. The court noted that, under some circumstances, a doctor can be a borrowed employee. The court held that, to negate the supervising radiologist’s status as an employee under section 101.001(2), the parents’ evidence must raise a fact issue that the borrowing employer, the hospital, controlled the supervising radiologist to the exclusion of the state medical center’s legal right to control the supervising radiologist. The contract between the state medical center and the hospital provided that the state medical center and its doctors were independent of the hospital and were independent contractors, not employees, of the hospital. By the contract’s terms, physicians such as the supervising radiologist remained employees of the state medical center while rendering health care at the hospital to the hospital’s patients; the physicians made their health care decisions completely independent of the hospital; and the hospital, the state medical center, and the physicians may take any reasonable action to inform the public. The boy’s medical records from the hospital contained a disclosure that informed the parents that the physicians treating the boy at the hospital were not employees or agents of the hospital. The conduct of the state medical center and the hospital comported with their agreement and did not create a genuine issue of material fact regarding the hospital’s control of the details of the supervising radiologist’s provision of health care to the boy.

 

The Court of Appeals of Texas, Dallas, reversed the trial court’s denial of the supervising radiologist’s motion seeking substitution or dismissal and entered judgment in favor of the doctor on the negligence claim.

 

See: Powell v. Knipp, 2015 WL 4653231 (Tex.App.-Dallas, August 6, 2015) (not designated for publication).

 

See also Medical Law Perspectives, December 2012 Report: When Urgency Leads to Errors: Liability for Emergency Care

 

See also Medical Law Perspectives, August 2015 Report: Pediatrician Liability for Childhood Disease Complications 

 

 

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